Cingular Thinks It Can Sue You For Linking To Its Website

By consumerist.comMay 3, 2007

Cingular thinks it can determine who gets to link to their website, according to this snippet from their terms of service agreement. Somehow their lawyers operate under this misconception that they’re in a position of being to grant, or revoke, the “right” to create a hypertextual link to their site. The likely intent is to try to set the stage so that then they could basically sue someone for linking to their website.

Cingular, whatever you’re paying these guys, it’s not enough! They need some more money so they can finish the rest of their law degree by mail courses. — BEN POPKENBe Careful How You Link To Cingular.com [Harry Maugans]

If you start looking at ToS, EULAs, and similar documents, you’ll notice that the lawyers will claim the universe, and wait for someone to challenge it. They bank on the uninformed and complacent majority to not challenge their “law”. In the long run, they come out on top.

Well, at the very least, I’ve just heard another reason to change my service to Verizon.

Luckily, when I blogged about what scumwads they were at Cingular for having giftcards that illegally expire in California and then refusing to do anything about it until I shoved and shoved, I didn’t link to their site. But, this does bring back memories, and it reminds me to remind California Cingular customers who have the giftcards that illegally expire to ring up Cingular and tell them you want your money off the card and you want your money now. See the law or search my blog (at advicegoddess.com) for details on what constitutes an illegally expiring giftcard.

“provided such link does not portray Cingular Wireless or any of it’s products and services in a false, misleading, derogatory, or otherwise defamatory manner.”

So I guess this would get me sued if I were to say, “This is a link to a great cell phone company that has great products and customer service!” Very misleading. My bad Cingular..I mean at&t..or whatever it is this week..

You know… With a link, you can damage a company. With Google’s supplementary index, and one of the criteria for being put into its “penalty box” being links from spammy sites, you could create all sorts of v14gra pages, link to a site, an cause harm to its Google PR.

“Third-Party Links. Cingular Wireless makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third-party Web sites or services accessible by hyperlink from the Sites, or third-party Web sites linking to the Sites.”

So which is it, Cingular? If you grant a revocable limited license, then you’re implying control over third parties and thus ARE making claims and representations because of the license. If you don’t grant a license, then you imply no control. If you grant a license, then that is by the very nature of the act of licensing, control.

Cingular is just another example of our corporate culture having no shame or guilt for how they do business. I deal frequently with engineers and top management at a Japanese electronics manufacturer; when you point out problems and bugs, they take it as personal failure. They don’t sweep it under the rug, they find the problem, bring in the people responsible and when the apologies are concluded, they announce when the problem will be resolved and that deadline is never missed. In the United States, it’ll somehow not only be turned into the consumer’s fault, but it’ll be turned into a line of profit.

ChaCha thinks they can do this as well. Their link to us policy (which I am linking to, against their policy) claims any link can only go to their homepage. There are various other, insane rules, they think you’ll follow – you just have to read it for yourself.

At least it doesn’t say anything about the content of the page having to speak nicely about ChaCha – they would never get any inbounds then…

As ridiculous as it may seem, if you explicitly “agree” to Cingular’s TOS (usually done by completing a registration form and checking the “I agree to the TOS” box) and then violate their “Links to the Site” provision, Cingular would probably prevail in a lawsuit against you.

This is actually a fairly common clause. It’s not enforceable, but as CharlesJBarry says, they have nothing to lose by including it.
Most cases regarding hyperlinking have been either settled or dismissed. But type “hyperlinking” and prohibited” into Googel and you’ll see a whole list of EULAs that try to do this.

This sort of thing happened to me with Lowes. My husband and I were doing renovations on our house, and on my blog I linked to a page on Lowes’ site with instructions on how to install a toilet. No prices or anything, just a how-to to illustrate what I was describing. The friend who hosts my site received a cease-and-desist letter, so I deleted the link. It still seems like a pretty stupid thing, since I shop there all the time (the toilet we installed was from Lowes), but what can you do?

I think these claims started with Ticketmaster suing Microsoft 10 years ago over hyperlinks to within Ticketmaster’s website. As I understand it, the legality of these sorts of claims hasn’t been resolved. While they seem rightfully absurd to us, the worry is that a judge might not see things the same way. Indeed, what rulings exist largely support content providers against deep linking with some notable exceptions. Cingular thinks it can sue you for linking to its website because it hasn’t yet been shown that they can’t. We hope it proves unenforcable, but the scary fact is that they might well be able to enforce it.

Actually, it depends on the data you are deep linkng. Usually, even if you are defaming their service, such as linking to their TOS, this is know as freedom of speech and it is unconstitutional, also, deep linking into a site is also legit. In court all you need to show is that a public site is one that as universal read, mean privaledge 755 in unix when used with apache and since such a site is displayed publically without any authorization, it is therefore public.

Its like taking a picture of a nude model on the street. The, cannot sue you because you have no privacy in public. This is also true in that case where that guy got tried due to the fact that the state of california submitted his trash as evidence and he got busted for it.

“You are granted a limited, nonexclusive right to create a hypertext link to the homepage of the Sites, provided such link does not portray Cingular Wireless or any of its products and services in a false, misleading, derogatory, or otherwise defamatory manner.”

so i guess calling them money-grubbing incompetent douchenozzles or stupid poopypants wouldn’t be okay?

@shdwsclan: I agree with your interpretation, but unfortunetly these aren’t settled legal questions yet. One assumes that linking to a site at all would be protected and I don’t think anyone has ever tried to push a case like that because I don’t believe any lawyer thinks such a case would hold up. Still, there is no case law. Deep linking is trickier because what case law exists in the United States has been both for and against it. Its easy for us to think the case would be a slam dunk, but we just can’t expect that. That’s not to say anyone should cower in the face of a cease and deceist letter. Its just to say that if they try to put up a fight, they should be aware that they may not win. I don’t agree with that in the least and it would probably be useful to push for legislation which clarifies the legality of hyperlinking and deep linking. Outlawing it would be fundamentally wrong and I hope it doesn’t happen.

I’d also note that your first example isn’t perfect and indeed illuminates the legal reasoning that is used to attack deep linking. While you can probably personally take a photo of a nude model on the street, you cannot take a photo of a person on the street and use it however you like. Them being in public doesn’t matter, because they still have to personnel privacy. Walking outside is nota waiver of those rights. To use that photo, you’d need permission of the subject. That’s the standard corporations want to see applied to hyperlinks. I think that’s a gross misapplicatiton of that standard, but I cannot say that I know for certain that some judge won’t affirm it.

@BStu: Not true at all. Going outside is most definitely a sort of wavier, for photography. Since the person has no reasonable expectation of privacy out on the city streets, a photographer does not need a waiver for using a picture of them. What the photographer does need to do is ensure that the person in the picture is not damaged by the use of the picture. A picture of a person, with a caption of say “New York Resident out for a stroll” would not wrongly hurt a person, but one suggesting the person endorses something that he/she does not endorse would be negligent, if not actionable. Libel can also happen. A picture in that situation can even be used in a commercial setting, given that certain precaution is used. Remember, “reasonable expectation of privacy” is the measure by which commercial photography is judged on.

@Michael Wales: I find it strange they say that if you do not accept this policy, then click on the “DECLINE” button, but then fail to actually provide a “DECLINE” button.

Other than that, this sort of policy (all links must go to main page) is rather common. Some sites enforce it by looking at the Referrer: HTTP header, and if it’s anything other than their own site, they serve an error message. It’s very easy to circumvent, but at least they do try to enforce it. It’s mostly done at image gallery sites rather than corporate websites or search engines though.

@cde: Yes, that is true. Going outside, or to a public space such as a library or train station, waives your privacy, thus allowing anyone to photograph you without explicit permission.
Private places are different. In people’s homes, or in hotel rooms, restaurants, or bars, you have to ask people’s permission to be allowed to photograph them.
But even in a public space without explicit privacy, you are still not allowed to use the photograph to defame the target. Publishing the picture entitled “New Yorker out for a stroll” is OK. Publishing it entitled “Is this a possible child molester?” is not.
At least that’s my layman understanding. Feel free to point out any mistakes.

@cde: Many photographers clearly disagree and get waivers or only circulate photos where the subjects cannot be identified. That’s because even if there is no federal law on photographing people, there are state laws ensuring both rights to privacy or publicity. Exceptions are made for newsworthy events. Walking down the street is generally not a newsworthy event.

There is, indeed, a case ongoing on this very point in New York for someone who was photographed walking down a street. While the subject of the photograph lost his case, it was primarily due to the statute of limitations expiring. Although there was clearly some support to affirm the photographer’s ability to publish the photo without permission this was a minority position on the most recent court ruling.

This is, at best, unsettled law but in most jurisdictions in the United States there are restrictions on using photographs of people who simply exited their homes. This restrictions do not only kick in for commercial uses, either. While it may be legal in some locations to use a photograph of someone without their consent, this is not a consistant standard. What we have with these linking cases are an effort to assert a corporate right to privacy and publicity based more in copyright law. I doubt it will succeed, but they base their attempt very much on those laws that do restrict photographing a person in a public setting.